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This is a Bill, not an Act. For current law, see the Acts databases.


TOBACCO AMENDMENT (PROTECTION OF CHILDREN) BILL 2009

                 PARLIAMENT OF VICTORIA

 Tobacco Amendment (Protection of Children) Bill
                    2009



                      TABLE OF PROVISIONS
Clause                                                                   Page

PART 1--PRELIMINARY                                                         1
  1      Purpose                                                            1
  2      Commencement                                                       2
  3      Principal Act                                                      2

PART 2--TOBACCO ADVERTISEMENTS IN RETAIL OUTLETS                            3
  4      Certain advertising prohibited                                     3
  5      Point of sale advertisements                                       5
  6      Removal of advertisements                                          5

PART 3--MISCELLANEOUS AMENDMENTS                                            6
  7      Purpose of Principal Act amended                                   6
  8      Definitions                                                        6
  9      Tobacco advertisements                                             7
  10     Enclosed workplaces: offence by occupier                           7
  11     Outdoor dining or drinking areas: offence by occupier              7
  12     Outdoor dining or drinking areas: no smoking signs                 7
  13     Enclosed restaurants and cafes: no smoking signs                   7
  14     Retail shopping centres: no smoking signs                          7
  15     Bingo areas and centres: no smoking signs                          8
  16     Casinos: no smoking signs                                          8
  17     Approved venues: no smoking signs                                  8
  18     Licensed premises: no smoking signs                                8
  19     New Division 1A inserted in Part 2                                 8
         Division 1A--Smoking in motor vehicles                             8
         5S       Offence to smoke in motor vehicle if person under 18
                  is present                                                8
         5T       Power to require driver to stop                           9
         5U       Evidential burden regarding age                           9
  20     Certain advertising prohibited: penalties                         10
  21     Point of sale advertisements: references to Commonwealth
         Regulations                                                       10



561350B.I-23/6/2009                       i   BILL LA INTRODUCTION 23/6/2009

 


 

Clause Page 22 Competitions 11 23 Free samples 11 24 Prohibition of certain sponsorships 11 25 Packing of tobacco 12 26 Offence to possess certain tobacco products 12 27 Supplying tobacco to person under 18 years 12 28 Vending machines 13 29 Mobile selling of tobacco products 13 30 Packages of cigarettes 14 31 Smokeless tobacco 14 32 Retail outlets: signage 14 33 Prohibition of retailing at premises where offences have been committed 15 34 Offence by occupier 15 35 No smoking signs 15 36 Covering vending machines, tobacco advertisements etc. 15 37 Prohibition on supplying tobacco at underage music/dance events 16 38 New Divisions 4 and 5 inserted in Part 2 16 Division 4--Sales of tobacco products from temporary outlets 16 15L Offence to sell tobacco products from temporary outlet 16 15M Offence for tobacco company to sell tobacco products from temporary outlet 17 Division 5--Prohibited products 17 15N Ban orders 17 15O Secretary may recommend ban order 18 15P Operation of ban order 19 15Q Amendment or revocation of ban order 19 15R Notice of order 19 15S Offence to breach a ban order 20 39 New Part 2A inserted 21 PART 2A--SPECIALIST TOBACCONISTS 21 15T Application for certification as specialist tobacconist 21 15U Determination of application 21 15V Certification holder to notify Secretary of commencement of tobacco retailing business 23 15W Duration of certification 23 15X Cancellation of certification 24 15Y Notice of determination or cancellation 25 15Z Replacement certificates 25 15ZA Offence to provide false or misleading information to Secretary 26 15ZB Specialist tobacconist must display certificate 26 561350B.I-23/6/2009 ii BILL LA INTRODUCTION 23/6/2009

 


 

Clause Page 40 Entry or search with consent 27 41 Search warrants 27 42 Seizure of things not mentioned in warrant 27 43 Magistrate's Court may extend 3 month period 27 44 Requirement to assist inspector during entry 27 45 Infringement notices 27 46 Proceedings 28 47 Section 41 substituted 28 41 Offences by a body corporate 28 48 New section 41AA inserted 29 41AA Conduct by officers, employees or agents 29 49 Power to require names of persons supplied with tobacco 30 50 New section 46 inserted 31 46 Section 3: definition of occupier 31 51 Schedule substituted 32 SCHEDULE--Infringement Offences 32 PART 4--REPEAL 35 52 Repeal of amending Act 35 ENDNOTES 36 561350B.I-23/6/2009 iii BILL LA INTRODUCTION 23/6/2009

 


 

PARLIAMENT OF VICTORIA Introduced in the Assembly Tobacco Amendment (Protection of Children) Bill 2009 A Bill for an Act to amend the Tobacco Act 1987 and for other purposes. The Parliament of Victoria enacts: PART 1--PRELIMINARY 1 Purpose The purpose of this Act is to amend the Tobacco Act 1987-- 5 (a) to provide that only retailers that are on- airport duty free shops or that have been certified as specialist tobacconists may display tobacco advertising; (b) to ban the sale of tobacco products from 10 temporary outlets; (c) to ban smoking in cars in which a person under the age of 18 years is present; 561350B.I-23/6/2009 1 BILL LA INTRODUCTION 23/6/2009

 


 

Tobacco Amendment (Protection of Children) Bill 2009 Part 1--Preliminary s. 2 (d) to enable the Minister to ban the sale of youth-oriented tobacco products and certain other products; (e) to create new offences in relation to smoking 5 and the sale of tobacco products; (f) to amend the penalty and enforcement provisions and to introduce new offences for bodies corporate; (g) to make minor miscellaneous amendments. 10 2 Commencement (1) This Act, except Part 2, comes into operation on 1 January 2010. (2) Part 2 comes into operation on 1 January 2011. 3 Principal Act 15 See: In this Act, the Tobacco Act 1987 is called the Act No. 81/1987. Principal Act. Reprint No. 6 as at 1 March 2006 and amending Act Nos 45/2005, 32/2006, 69/2006, 80/2006 and 46/2008. LawToday: www. legislation. vic.gov.au __________________ 561350B.I-23/6/2009 2 BILL LA INTRODUCTION 23/6/2009

 


 

Tobacco Amendment (Protection of Children) Bill 2009 Part 2--Tobacco Advertisements in Retail Outlets s. 4 PART 2--TOBACCO ADVERTISEMENTS IN RETAIL OUTLETS 4 Certain advertising prohibited (1) After section 6(2) of the Principal Act insert-- 5 "(2AA) If there is a tobacco advertisement at a retail outlet (other than a specialist tobacconist or an on-airport duty free shop), the person carrying on the tobacco retailing business at that retail outlet is guilty of an offence and 10 liable to a penalty not exceeding 60 penalty units, in the case of a natural person, or 300 penalty units, in the case of a body corporate. Note 15 See the definition of tobacco advertisement in section 3B.". (2) In section 6(2A) of the Principal Act, for "retail outlet or" substitute "specialist tobacconist or an on-airport duty free shop or at a". 20 (3) In section 6(2B) of the Principal Act, for "tobacco retailing business or" substitute "tobacco retailing business at a specialist tobacconist or an on- airport duty free shop or a". (4) In section 6(2D) of the Principal Act, after "(2)," 25 (wherever occurring) insert "(2AA),". (5) After section 6(3)(b) of the Principal Act insert-- "(ba) the temporary display of tobacco products or immediate packages of tobacco products in a retail outlet in response to a request by a 30 customer wishing to purchase a specified tobacco product; or". (6) In section 6(3)(c) of the Principal Act, for "retail outlet or" substitute "specialist tobacconist, an on-airport duty free shop or a". 561350B.I-23/6/2009 3 BILL LA INTRODUCTION 23/6/2009

 


 

Tobacco Amendment (Protection of Children) Bill 2009 Part 2--Tobacco Advertisements in Retail Outlets s. 4 (7) In section 6(3)(ca) of the Principal Act, for "retail outlet or" substitute "specialist tobacconist, an on-airport duty free shop or a". (8) After section 6(3)(ca) of the Principal Act 5 insert-- "(cab) one notice about tobacco products at one point of sale at a retail outlet (other than a specialist tobacconist or an on-airport duty free shop) that complies with the prescribed 10 requirements as to size, information contained in it and the manner in which the information is set out or the notice is displayed; or". (9) In section 6(3)(cb) of the Principal Act, for 15 "products displaying retail prices, being tickets or labels that" substitute "products in a specialist tobacconist or an on-airport duty free shop if the tickets or labels display retail prices and". (10) In section 6(3)(cc) of the Principal Act, for 20 "tickets or labels on, or adjacent to, representations of immediate packages of tobacco products in vending machines displaying retail prices, being tickets or labels" substitute "tickets or labels on or in vending machines". 25 (11) After section 6(3)(cc) of the Principal Act insert-- "(d) one notice at a retail outlet or a wholesale outlet to the effect that tobacco products are available for sale at the outlet, being a notice 30 that does not exceed the prescribed maximum size and complies with the prescribed requirements as to information contained in it and the manner in which the information is set out or displayed; or". 561350B.I-23/6/2009 4 BILL LA INTRODUCTION 23/6/2009

 


 

Tobacco Amendment (Protection of Children) Bill 2009 Part 2--Tobacco Advertisements in Retail Outlets s. 5 5 Point of sale advertisements (1) In section 6A(1) of the Principal Act, for "retail outlet" substitute "specialist tobacconist or an on- airport duty free shop". 5 (2) Section 6A(1)(c) of the Principal Act is repealed. (3) In section 6A(2) of the Principal Act, for "retail outlet" substitute "specialist tobacconist or an on- airport duty free shop". (4) In section 6A(4) of the Principal Act, for "retail 10 outlet" substitute "specialist tobacconist or an on- airport duty free shop". (5) In section 6A(7) of the Principal Act, for "retail outlet" substitute "specialist tobacconist or an on- airport duty free shop". 15 (6) Section 6A(8) of the Principal Act is repealed. 6 Removal of advertisements In section 37(2) of the Principal Act, for "or (2A)" substitute ", (2AA) or (2A)". __________________ 561350B.I-23/6/2009 5 BILL LA INTRODUCTION 23/6/2009

 


 

Tobacco Amendment (Protection of Children) Bill 2009 Part 3--Miscellaneous Amendments s. 7 PART 3--MISCELLANEOUS AMENDMENTS 7 Purpose of Principal Act amended In section 1 of the Principal Act, after "products" insert "and certain non-tobacco products, to create 5 offences in relation to smoking and the possession of tobacco products". 8 Definitions (1) In section 3 of the Principal Act insert the following definitions-- 10 "ban order means an order made by the Minister under section 15N(1); driver has the same meaning as in the Road Safety Act 1986; highway has the same meaning as in the Road 15 Safety Act 1986; motor vehicle has the same meaning as in the Road Safety Act 1986; specialist tobacconist means a retail outlet that is certified by the Secretary as a specialist 20 tobacconist under section 15U;". (2) In section 3 of the Principal Act, for the definition of occupier substitute-- "occupier, in relation to an area or premises, means-- 25 (a) a person who appears to be of or over the age of 16 years and who is or appears to be in control of the area or premises, whether or not the person is present in the area or on the premises; 30 or (b) a body corporate that is or appears to be in control of the area or premises;". 561350B.I-23/6/2009 6 BILL LA INTRODUCTION 23/6/2009

 


 

Tobacco Amendment (Protection of Children) Bill 2009 Part 3--Miscellaneous Amendments s. 9 9 Tobacco advertisements In section 3B(4) of the Principal Act, omit ", of a tobacco product, of the packaging of a tobacco product, or". 5 10 Enclosed workplaces: offence by occupier In section 5B(1) of the Principal Act, for "5 penalty units" substitute "10 penalty units, in the case of a natural person, or 50 penalty units, in the case of a body corporate". 10 11 Outdoor dining or drinking areas: offence by occupier In section 5D(1) of the Principal Act, for "5 penalty units" substitute "10 penalty units, in the case of a natural person, or 50 penalty units, in 15 the case of a body corporate". 12 Outdoor dining or drinking areas: no smoking signs In section 5E(1) of the Principal Act, for "5 penalty units" substitute "10 penalty units, in the case of a natural person, or 50 penalty units, in 20 the case of a body corporate". 13 Enclosed restaurants and cafes: no smoking signs In section 5F(1) of the Principal Act, for "5 penalty units" substitute "10 penalty units, in the case of a natural person, or 50 penalty units, in 25 the case of a body corporate". 14 Retail shopping centres: no smoking signs In section 5G(3) of the Principal Act-- (a) for "5 penalty units" substitute "10 penalty units"; and 561350B.I-23/6/2009 7 BILL LA INTRODUCTION 23/6/2009

 


 

Tobacco Amendment (Protection of Children) Bill 2009 Part 3--Miscellaneous Amendments s. 15 (b) for "10 penalty units in any other case" substitute "50 penalty units in the case of a body corporate". 15 Bingo areas and centres: no smoking signs 5 In section 5H(1) of the Principal Act, for "5 penalty units" substitute "10 penalty units, in the case of a natural person, or 50 penalty units, in the case of a body corporate". 16 Casinos: no smoking signs 10 In section 5K(1) of the Principal Act, for "5 penalty units" substitute "10 penalty units, in the case of a natural person, or 50 penalty units, in the case of a body corporate". 17 Approved venues: no smoking signs 15 In section 5N(1) of the Principal Act, for "5 penalty units" substitute "10 penalty units, in the case of a natural person, or 50 penalty units, in the case of a body corporate". 18 Licensed premises: no smoking signs 20 In section 5R(1) of the Principal Act, for "5 penalty units" substitute "10 penalty units, in the case of a natural person, or 50 penalty units, in the case of a body corporate". 19 New Division 1A inserted in Part 2 25 After Division 1 of Part 2 of the Principal Act insert-- "Division 1A--Smoking in motor vehicles 5S Offence to smoke in motor vehicle if person under 18 is present 30 Despite anything to the contrary in this Act, a person must not smoke in a motor vehicle, whether or not the motor vehicle is in 561350B.I-23/6/2009 8 BILL LA INTRODUCTION 23/6/2009

 


 

Tobacco Amendment (Protection of Children) Bill 2009 Part 3--Miscellaneous Amendments s. 19 motion, if another person is present in the motor vehicle and the other person is under the age of 18 years. Penalty: 5 penalty units. 5 5T Power to require driver to stop (1) A police member may require a driver or person in charge of a motor vehicle on a highway to stop the motor vehicle if the police member believes on reasonable 10 grounds that a person in the vehicle has committed or is about to commit an offence against section 5S. (2) Subject to subsection (3), a person must not fail to stop a motor vehicle when required to 15 do so under subsection (1). Penalty: 10 penalty units. (3) Subsection (2) is not contravened if-- (a) the person making the requirement to stop is not in uniform; and 20 (b) the driver or person in charge of the motor vehicle believed that that person was not a police member. 5U Evidential burden regarding age In proceedings for an offence against 25 section 5S, evidence that a person present in the relevant motor vehicle appeared to be under the age of 18 years is, in the absence of evidence to the contrary, proof that the person was under the age of 18 years.". 561350B.I-23/6/2009 9 BILL LA INTRODUCTION 23/6/2009

 


 

Tobacco Amendment (Protection of Children) Bill 2009 Part 3--Miscellaneous Amendments s. 20 20 Certain advertising prohibited: penalties (1) For the penalty at the foot of section 6(1) of the Principal Act substitute-- "Penalty: In the case of a natural person, 5 60 penalty units; In the case of a body corporate, 300 penalty units.". (2) In section 6(2A) of the Principal Act, after "guilty of an offence" insert "and liable to a penalty not 10 exceeding 60 penalty units, in the case of a natural person, or 300 penalty units, in the case of a body corporate". (3) The penalty at the foot of section 6(2A) of the Principal Act is repealed. 15 (4) For the penalty at the foot of section 6(2B) of the Principal Act substitute-- "Penalty: In the case of a natural person, 60 penalty units; In the case of a body corporate, 20 300 penalty units.". 21 Point of sale advertisements: references to Commonwealth Regulations (1) In section 6A(1)(b)(i)(C) of the Principal Act, for "Trade Practices (Consumer Product Information 25 Standards) (Tobacco) Regulations 1994" substitute "Trade Practices (Consumer Product Information Standards) (Tobacco) Regulations 2004". (2) In section 6A(2)(a)(ii) of the Principal Act, for 30 "Trade Practices (Consumer Product Information Standards) (Tobacco) Regulations 1994" substitute "Trade Practices (Consumer Product Information Standards) (Tobacco) Regulations 2004". 561350B.I-23/6/2009 10 BILL LA INTRODUCTION 23/6/2009

 


 

Tobacco Amendment (Protection of Children) Bill 2009 Part 3--Miscellaneous Amendments s. 22 22 Competitions For the penalty at the foot of section 7(1) of the Principal Act substitute-- "Penalty: In the case of a natural person, 5 60 penalty units; In the case of a body corporate, 300 penalty units.". 23 Free samples For the penalty at the foot of section 8(1) of the 10 Principal Act substitute-- "Penalty: In the case of a natural person, 60 penalty units; In the case of a body corporate, 300 penalty units.". 15 24 Prohibition of certain sponsorships (1) For the penalty at the foot of section 9(1) of the Principal Act substitute-- "Penalty: In the case of a natural person, 60 penalty units; 20 In the case of a body corporate, 300 penalty units.". (2) For the penalty at the foot of section 9(2) of the Principal Act substitute-- "Penalty: In the case of a natural person, 25 60 penalty units; In the case of a body corporate, 300 penalty units.". 561350B.I-23/6/2009 11 BILL LA INTRODUCTION 23/6/2009

 


 

Tobacco Amendment (Protection of Children) Bill 2009 Part 3--Miscellaneous Amendments s. 25 25 Packing of tobacco For the penalty at the foot of section 11 of the Principal Act substitute-- "Penalty: In the case of a natural person, 5 120 penalty units; In the case of a body corporate, 600 penalty units.". 26 Offence to possess certain tobacco products For the penalty at the foot of section 11A of the 10 Principal Act substitute-- "Penalty: In the case of a natural person, 60 penalty units; In the case of a body corporate, 300 penalty units.". 15 27 Supplying tobacco to person under 18 years (1) For the penalty at the foot of section 12(1) of the Principal Act substitute-- "Penalty: In the case of a natural person, 120 penalty units; 20 In the case of a body corporate, 600 penalty units.". (2) For the penalty at the foot of section 12(2) of the Principal Act substitute-- "Penalty: In the case of a natural person, 25 20 penalty units; In the case of a body corporate, 100 penalty units.". 561350B.I-23/6/2009 12 BILL LA INTRODUCTION 23/6/2009

 


 

Tobacco Amendment (Protection of Children) Bill 2009 Part 3--Miscellaneous Amendments s. 28 (3) For section 12(3) of the Principal Act substitute-- "(3) The occupier of premises on which a vending machine is situated must not permit 5 a person under the age of 18 years to obtain a tobacco product from that vending machine. Penalty: In the case of a natural person, 60 penalty units; In the case of a body corporate, 10 300 penalty units.". 28 Vending machines For the penalty at the foot of section 13(1) of the Principal Act substitute-- "Penalty: In the case of a natural person, 15 60 penalty units; In the case of a body corporate, 300 penalty units.". 29 Mobile selling of tobacco products (1) In section 13A(1) of the Principal Act, for 20 "100 penalty units" substitute "120 penalty units". (2) For the penalty at the foot of section 13A(2) of the Principal Act substitute-- "Penalty: In the case of a natural person, 25 120 penalty units; In the case of a body corporate, 600 penalty units.". (3) After section 13A(2) of the Principal Act insert-- "(2A) A tobacco company is guilty of an offence 30 against this subsection, and liable to a penalty not exceeding 5000 penalty units, if the tobacco company intentionally or recklessly-- 561350B.I-23/6/2009 13 BILL LA INTRODUCTION 23/6/2009

 


 

Tobacco Amendment (Protection of Children) Bill 2009 Part 3--Miscellaneous Amendments s. 30 (a) contravenes subsection (2); or (b) causes another person to contravene subsection (1) or (2). (2B) An offence against subsection (2A) is an 5 indictable offence.". 30 Packages of cigarettes For the penalty at the foot of section 14 of the Principal Act substitute-- "Penalty: In the case of a natural person, 10 120 penalty units; In the case of a body corporate, 600 penalty units.". 31 Smokeless tobacco For the penalty at the foot of section 15(1) of the 15 Principal Act substitute-- "Penalty: In the case of a natural person, 120 penalty units; In the case of a body corporate, 600 penalty units.". 20 32 Retail outlets: signage (1) For the penalty at the foot of section 15C(1) of the Principal Act substitute-- "Penalty: In the case of a natural person, 10 penalty units; 25 In the case of a body corporate, 50 penalty units.". (2) For the penalty at the foot of section 15C(3) of the Principal Act substitute-- "Penalty: In the case of a natural person, 30 10 penalty units; In the case of a body corporate, 50 penalty units.". 561350B.I-23/6/2009 14 BILL LA INTRODUCTION 23/6/2009

 


 

Tobacco Amendment (Protection of Children) Bill 2009 Part 3--Miscellaneous Amendments s. 33 33 Prohibition of retailing at premises where offences have been committed (1) For the penalty at the foot of section 15D(2) of the Principal Act substitute-- 5 "Penalty: In the case of a natural person, 120 penalty units; In the case of a body corporate, 600 penalty units.". (2) For the penalty at the foot of section 15D(3) of the 10 Principal Act substitute-- "Penalty: In the case of a natural person, 120 penalty units; In the case of a body corporate, 600 penalty units.". 15 34 Offence by occupier In section 15G(1) of the Principal Act, for "5 penalty units" substitute "10 penalty units, in the case of a natural person, or 50 penalty units, in the case of a body corporate". 20 35 No smoking signs In section 15H(1) of the Principal Act, for "5 penalty units" substitute "10 penalty units, in the case of a natural person, or 50 penalty units, in the case of a body corporate". 25 36 Covering vending machines, tobacco advertisements etc. For the penalty at the foot of section 15I(1) of the Principal Act substitute-- "Penalty: In the case of a natural person, 30 60 penalty units; In the case of a body corporate, 300 penalty units.". 561350B.I-23/6/2009 15 BILL LA INTRODUCTION 23/6/2009

 


 

Tobacco Amendment (Protection of Children) Bill 2009 Part 3--Miscellaneous Amendments s. 37 37 Prohibition on supplying tobacco at underage music/dance events For the penalty at the foot of section 15J of the Principal Act substitute-- 5 "Penalty: In the case of a natural person, 60 penalty units; In the case of a body corporate, 300 penalty units.". 38 New Divisions 4 and 5 inserted in Part 2 10 After Division 3 of Part 2 of the Principal Act insert-- "Division 4--Sales of tobacco products from temporary outlets 15L Offence to sell tobacco products from 15 temporary outlet (1) A person must not sell tobacco products from a point of sale that is located in a temporary display stand, booth or tent or other temporary or mobile structure or 20 enclosure, whether or not a part of that display stand, booth, tent, structure or enclosure is permanent. Penalty: In the case of a natural person, 60 penalty units; 25 In the case of a body corporate, 300 penalty units. 561350B.I-23/6/2009 16 BILL LA INTRODUCTION 23/6/2009

 


 

Tobacco Amendment (Protection of Children) Bill 2009 Part 3--Miscellaneous Amendments s. 38 (2) A person must not sell tobacco products from a point of sale that is in a retail outlet established in an area or premises for the duration of a specific sports, music or arts- 5 related function or event in the area or premises. Penalty: In the case of a natural person, 60 penalty units; In the case of a body corporate, 10 300 penalty units. 15M Offence for tobacco company to sell tobacco products from temporary outlet (1) A tobacco company is guilty of an offence against this subsection, and liable to a 15 penalty not exceeding 5000 penalty units, if the tobacco company intentionally or recklessly contravenes section 15L(1) or 15L(2) or causes another person to contravene section 15L(1) or 15L(2). 20 (2) An offence against subsection (1) is an indictable offence. Division 5--Prohibited products 15N Ban orders (1) The Minister, by order published in the 25 Government Gazette, may ban a product or a class of products if-- (a) the Secretary recommends the making of the order to the Minister under section 15O; or 30 (b) the product or the class of products has been prohibited or restricted by or under a law of the Commonwealth or another State or Territory on the ground that the product or the class of products 561350B.I-23/6/2009 17 BILL LA INTRODUCTION 23/6/2009

 


 

Tobacco Amendment (Protection of Children) Bill 2009 Part 3--Miscellaneous Amendments s. 38 meets one or more criteria that substantially correspond to the criteria set out in section 15O(2)(a). (2) A ban order must-- 5 (a) if the ban order is made on the recommendation of the Secretary, specify that fact and set out the grounds for the recommendation; or (b) if a ban order is made on the basis of a 10 prohibition or restriction by the Commonwealth or another State or Territory, specify that fact and the law or subordinate instrument containing the prohibition or restriction. 15 (3) A ban order may apply, adopt or incorporate, wholly or partially or as amended by the order, any matter contained in any document as existing-- (a) from time to time; or 20 (b) at a particular time. 15O Secretary may recommend ban order (1) The Secretary may recommend to the Minister that a ban order be made in respect of a specified product or a specified class of 25 products. (2) The Secretary must not make a recommendation under subsection (1) unless the Secretary has fully investigated the matter and is satisfied that-- 30 (a) the product-- (i) is a tobacco product and the product or its smoke possesses a distinctive fruity, sweet or confectionery-like character; or 561350B.I-23/6/2009 18 BILL LA INTRODUCTION 23/6/2009

 


 

Tobacco Amendment (Protection of Children) Bill 2009 Part 3--Miscellaneous Amendments s. 38 (ii) is a tobacco product and has packaging that appeals to children or young people; or (iii) is not a tobacco product but 5 resembles a tobacco product; or (iv) is of a nature or is advertised in a way that may encourage children or young people to smoke; and (b) the supply of the product should be 10 prohibited, having regard to the objects of this Act. (3) A recommendation by the Secretary must set out the grounds for the recommendation. 15P Operation of ban order 15 A ban order takes effect on the date specified in the ban order or 7 days after the ban order is published in the Government Gazette, whichever is the later. 15Q Amendment or revocation of ban order 20 The Minister, by order published in the Government Gazette, may amend or revoke a ban order. 15R Notice of order (1) The Secretary must cause a copy of a ban 25 order, or a copy of an order amending or revoking a ban order-- (a) to be given to each person who, to the knowledge of the Minister, supplies the product or class of products in respect 30 of which the ban order was made; and (b) to be published in a newspaper circulating generally throughout the State. 561350B.I-23/6/2009 19 BILL LA INTRODUCTION 23/6/2009

 


 

Tobacco Amendment (Protection of Children) Bill 2009 Part 3--Miscellaneous Amendments s. 38 (2) A copy of a ban order or a copy of an order amending or revoking a ban order must be given and published under subsection (1) within 2 days after the publication of the 5 order in the Government Gazette, or if that is not practicable, as soon as possible after the end of that period. (3) A failure to comply with subsection (1) or (2) in relation to a ban order or an order 10 amending or revoking a ban order does not invalidate the order. 15S Offence to breach a ban order (1) A person must not sell by retail or wholesale a product in respect of which a ban order 15 under section 15N is in force. Penalty: In the case of a natural person, 120 penalty units; In the case of a body corporate, 600 penalty units. 20 (2) A tobacco company is guilty of an offence against this subsection and liable to a penalty not exceeding 5000 penalty units, if the tobacco company intentionally or recklessly-- 25 (a) contravenes subsection (1); or (b) causes another person to contravene subsection (1). (3) An offence against subsection (2) is an indictable offence.". 561350B.I-23/6/2009 20 BILL LA INTRODUCTION 23/6/2009

 


 

Tobacco Amendment (Protection of Children) Bill 2009 Part 3--Miscellaneous Amendments s. 39 39 New Part 2A inserted After Part 2 of the Principal Act insert-- "PART 2A--SPECIALIST TOBACCONISTS 15T Application for certification as specialist 5 tobacconist (1) A person carrying on or proposing to carry on a tobacco retailing business at premises may apply to the Secretary for certification that the premises are a specialist tobacconist. 10 (2) An application for certification must-- (a) be in or to the like effect of the form approved by the Secretary; and (b) specify the premises in respect of which the application is made; and 15 (c) include any information specified in the approved form; and (d) be accompanied by the prescribed fee, if any. 15U Determination of application 20 (1) On application under section 15T, the Secretary must determine the application by-- (a) certifying that the premises are a specialist tobacconist; or 25 (b) refusing to so certify. (2) The Secretary may certify that premises are a specialist tobacconist if the Secretary is satisfied that-- (a) a tobacco retailing business is carried 30 on or proposed to be carried on at the premises; and 561350B.I-23/6/2009 21 BILL LA INTRODUCTION 23/6/2009

 


 

Tobacco Amendment (Protection of Children) Bill 2009 Part 3--Miscellaneous Amendments s. 39 (b) the gross turnover of tobacco products at the premises-- (i) if the tobacco retailing business is carried on at the premises at the 5 time of the application, constitutes 80 per cent or more of the gross turnover of all products sold at the premises in the 12 months immediately preceding the 10 application or the applicant's period of trading at the premises, whichever is shorter; or (ii) if the tobacco retailing business is proposed to be carried on at the 15 premises at the time of the application, is projected to constitute 80 per cent or more of the projected gross turnover of all products to be sold at the premises 20 in the 12 months immediately following the commencement of trading by the applicant at the premises; and (c) certification of the premises is 25 consistent with the objects of this Act; and (d) certification of the premises is consistent with any strategic plan, policy statement, code or guideline 30 relating to specialist tobacconists that has been adopted by the Minister; and (e) the premises are separated from other retail premises by a wall and that any doorway or entrance to or exit from the 35 premises does not open directly into any other retail premises. 561350B.I-23/6/2009 22 BILL LA INTRODUCTION 23/6/2009

 


 

Tobacco Amendment (Protection of Children) Bill 2009 Part 3--Miscellaneous Amendments s. 39 (3) The Secretary may refuse to certify premises as a specialist tobacconist if-- (a) the applicant does not comply with any requirement of this Act or the 5 regulations; or (b) the Secretary is not satisfied as required by subsection (2). (4) For the purposes of determining an application, the Secretary, by written notice 10 to the applicant, may require the applicant to provide within a reasonable period information relating to the application that is specified in the notice. (5) Before refusing to certify premises, the 15 Secretary must give the applicant an opportunity to make a written submission. (6) If the Secretary certifies that premises are a specialist tobacconist, the Secretary must issue the applicant with a certificate to that 20 effect. 15V Certification holder to notify Secretary of commencement of tobacco retailing business A certification holder who proposes to carry 25 on a tobacco retailing business at premises certified as a specialist tobacconist must notify the Secretary within 7 days after the business commences at those premises. 15W Duration of certification 30 (1) The certification of premises remains in force until-- (a) the tobacco retailing business carried on at the premises ceases or moves to different premises; or 561350B.I-23/6/2009 23 BILL LA INTRODUCTION 23/6/2009

 


 

Tobacco Amendment (Protection of Children) Bill 2009 Part 3--Miscellaneous Amendments s. 39 (b) the tobacco retailing business carried on at the premises is no longer carried on by the applicant, whether solely or with any other person; or 5 (c) the Secretary cancels the certification under section 15X(1) or (4). (2) If the certification of premises ceases to be in force by reason of subsection (1)(a) or (1)(b), the certification holder must notify the 10 Secretary of that fact within 7 days after the certification ceases to be in force. 15X Cancellation of certification (1) The Secretary may cancel a certification under section 15U for premises if-- 15 (a) the certification holder does not comply with a requirement of this Act or the regulations; or (b) the premises no longer satisfy the criteria set out in section 15U(2). 20 (2) For the purposes of determining whether to cancel a certification, the Secretary, by written notice to the certification holder, may require the certification holder to provide within a reasonable period information 25 relating to the certification that is specified in the notice. (3) Before cancelling a certification under subsection (1), the Secretary must give the certification holder an opportunity to be 30 heard. (4) The Secretary may cancel a certification at the request of the certification holder. 561350B.I-23/6/2009 24 BILL LA INTRODUCTION 23/6/2009

 


 

Tobacco Amendment (Protection of Children) Bill 2009 Part 3--Miscellaneous Amendments s. 39 (5) If premises are certified to be a specialist tobacconist and the certification holder does not commence carrying on a tobacco retailing business at the premises within 5 12 months after the premises being certified, the certification holder must request the Secretary to cancel the certification under subsection (4). (6) If a certification is cancelled, the certification 10 holder must return the certificate issued under section 15U(6) within a reasonable period unless the certification holder satisfies the Secretary that the original certificate is lost, stolen or destroyed. 15 15Y Notice of determination or cancellation (1) Within 7 days after determining an application under section 15U, the Secretary must notify the applicant in writing of the determination and, if the application is 20 refused, the grounds for the determination. (2) Within 7 days after cancelling a certification under section 15X, the Secretary must notify the certification holder in writing of the cancellation, the grounds for the cancellation 25 and the date of cancellation. 15Z Replacement certificates The Secretary may issue a replacement certificate to a certification holder who satisfies the Secretary that the original 30 certificate is lost, stolen or destroyed. 561350B.I-23/6/2009 25 BILL LA INTRODUCTION 23/6/2009

 


 

Tobacco Amendment (Protection of Children) Bill 2009 Part 3--Miscellaneous Amendments s. 39 15ZA Offence to provide false or misleading information to Secretary (1) A person must not give information to the Secretary under this Part that the person 5 knows to be false or misleading in any material particular. Penalty: In the case of a natural person, 60 penalty units; In the case of a body corporate, 10 300 penalty units. (2) A person must not produce a document to the Secretary under this Part that the person knows to be false or misleading in any material particular without indicating the 15 respect in which it is false or misleading and, if practicable, providing correct information. Penalty: In the case of a natural person, 60 penalty units; In the case of a body corporate, 20 300 penalty units. 15ZB Specialist tobacconist must display certificate A person who carries on business at a retail outlet that is certified to be a specialist 25 tobacconist must display the certificate issued under section 15U(6) in a conspicuous place at the retail outlet in a manner that invites attention. Penalty: In the case of a natural person, 30 10 penalty units; In the case of a body corporate, 50 penalty units. __________________". 561350B.I-23/6/2009 26 BILL LA INTRODUCTION 23/6/2009

 


 

Tobacco Amendment (Protection of Children) Bill 2009 Part 3--Miscellaneous Amendments s. 40 40 Entry or search with consent In section 36D(1) of the Principal Act, after "this Act" insert ", other than Division 1A of Part 2,". 41 Search warrants 5 (1) In section 36F(1) of the Principal Act, after "this Act" insert ", other than Division 1A of Part 2,". (2) In section 36F(2) of the Principal Act, after "this Act" insert ", other than Division 1A of Part 2,". 42 Seizure of things not mentioned in warrant 10 In section 36I of the Principal Act, after "this Act" (wherever occurring) insert ", other than Division 1A of Part 2,". 43 Magistrate's Court may extend 3 month period In section 36L(2) of the Principal Act, after "this 15 Act" (where first and secondly occurring) insert ", other than Division 1A of Part 2,". 44 Requirement to assist inspector during entry In section 36M of the Principal Act, after "this Act" insert ", other than Division 1A of Part 2,". 20 45 Infringement notices (1) For section 38(1) of the Principal Act substitute-- "(1) An inspector or a police member may serve an infringement notice on a person who the 25 inspector or police member believes has committed an infringement offence referred to in an item in the Schedule requiring the person to pay-- (a) in the case of a natural person, the 30 infringement penalty specified in column A of the Schedule for that infringement offence; 561350B.I-23/6/2009 27 BILL LA INTRODUCTION 23/6/2009

 


 

Tobacco Amendment (Protection of Children) Bill 2009 Part 3--Miscellaneous Amendments s. 46 (b) in the case of a body corporate, the infringement penalty specified in column B of the Schedule for that infringement offence.". 5 (2) After section 38(1) of the Principal Act insert-- "(1A) A police member may serve an infringement notice on a person if the police member has reason to believe that the person has committed an offence against section 5S. 10 (1B) The infringement penalty for an offence against section 5S is 2 penalty units.". (3) In section 38(2) of the Principal Act, for "subsection (1)" substitute "subsection (1) or (1A)". 15 (4) In section 38(3) of the Principal Act, for "subsection (1)" substitute "subsections (1) and (1A)". 46 Proceedings (1) In section 39(1) of the Principal Act, for 20 "Proceedings" substitute "Subject to subsection (1A), proceedings". (2) After section 39(1) of the Principal Act insert-- "(1A) Proceedings for an offence under Division 1A of Part 2 may not be brought by 25 an inspector.". 47 Section 41 substituted For section 41 of the Principal Act substitute-- "41 Offences by a body corporate (1) If a body corporate contravenes any 30 provision of this Act, each officer (within the meaning of section 9 of the Corporations Act) of the body corporate who knowingly authorised or permitted the contravention is 561350B.I-23/6/2009 28 BILL LA INTRODUCTION 23/6/2009

 


 

Tobacco Amendment (Protection of Children) Bill 2009 Part 3--Miscellaneous Amendments s. 48 taken to have contravened the same provision. (2) Subsection (1) does not apply to an offence against section 6(2D), 7(5), 8(3), 9(5), 5 13A(2A), 15M(1) or 15S(2). (3) A person may be proceeded against and convicted under a provision in accordance with subsection (1), whether or not the body corporate has been proceeded against or 10 convicted under that provision. (4) Nothing in this section affects any liability imposed on a body corporate for an offence committed by the body corporate against this Act.". 15 48 New section 41AA inserted After section 41 of the Principal Act insert-- "41AA Conduct by officers, employees or agents (1) For the purposes of any proceedings under this Act, any conduct engaged in on behalf of 20 a body corporate is deemed to have been engaged in also by the body corporate if the conduct was engaged in by an employee, agent or officer (within the meaning of section 9 of the Corporations Act) of the 25 body corporate within the scope of the actual or apparent authority of the employee, agent or officer. (2) If, in any proceedings under this Act, it is necessary to establish the state of mind of a 30 body corporate in relation to particular conduct, it is sufficient to show-- (a) that the conduct was engaged in by an officer of the body corporate within the scope of the officer's actual or apparent 561350B.I-23/6/2009 29 BILL LA INTRODUCTION 23/6/2009

 


 

Tobacco Amendment (Protection of Children) Bill 2009 Part 3--Miscellaneous Amendments s. 49 authority and the officer had that state of mind; or (b) that the conduct was engaged in by an agent of the body corporate and-- 5 (i) the agent acted at the specific direction or with the specific consent or agreement of the body corporate; or (ii) the agent had that state of mind; or 10 (iii) the body corporate was aware of the agent's state of mind when the conduct was engaged in. (3) A reference in this section to the state of mind of a person includes a reference to the 15 knowledge, intention, opinion, belief or purpose of the person and the person's reasons for the intention, opinion, belief or purpose.". 49 Power to require names of persons supplied with 20 tobacco (1) For section 42A(1) of the Principal Act substitute-- "(1) The Secretary may, in writing addressed to a person who manufactures tobacco products 25 or sells tobacco products by wholesale, require the person to provide to the Secretary within a reasonable period, being not less than one month after the requirement is made-- 30 (a) the names and addresses of persons carrying on a tobacco retailing business in Victoria to whom the person has supplied tobacco products in Victoria within the preceding 12 months; and 561350B.I-23/6/2009 30 BILL LA INTRODUCTION 23/6/2009

 


 

Tobacco Amendment (Protection of Children) Bill 2009 Part 3--Miscellaneous Amendments s. 50 (b) the addresses of retail outlets in Victoria that the person knows-- (i) sell tobacco products manufactured by the person; or 5 (ii) sell tobacco products purchased at wholesale from the person, whether directly or indirectly. (1A) Information provided to the Secretary in response to a request under subsection (1) 10 must be in or to the effect of the form (including electronic form) approved by the Secretary.". (2) For the penalty at the foot of section 42A(2) of the Principal Act substitute-- 15 "Penalty: In the case of a natural person, 60 penalty units; In the case of a body corporate, 300 penalty units.". 50 New section 46 inserted 20 After section 45 of the Principal Act insert-- "46 Section 3: definition of occupier (1) The definition of occupier inserted in section 3 by section 8(2) of the Tobacco Amendment (Protection of Children) Act 25 2009 applies to-- (a) offences alleged to have been committed; and (b) the exercise of powers under Part 3A-- on or after 1 January 2010. 30 (2) For the purposes of subsection (1), if an offence is alleged to have been committed between 2 dates of which one is before and one is on or after 1 January 2010, the offence 561350B.I-23/6/2009 31 BILL LA INTRODUCTION 23/6/2009

 


 

Tobacco Amendment (Protection of Children) Bill 2009 Part 3--Miscellaneous Amendments s. 51 is alleged to have been committed before 1 January 2010.". 51 Schedule substituted For the Schedule to the Principal Act substitute-- 5 "SCHEDULE Section 38 INFRINGEMENT OFFENCES Column A Column B Infringement penalty Infringement Infringement (natural penalty (body Item offence person) corporate) 1 An offence against 1 penalty Not section 5A(1) unit applicable 2 An offence against 2 penalty Not section 5B(1) units applicable 3 An offence against 1 penalty Not section 5C(1) unit applicable 4 An offence against 2 penalty Not section 5D(1) units applicable 5 An offence against 2 penalty 5 penalty section 5E(1) units units 6 An offence against 2 penalty 5 penalty section 5F(1) units units 7 An offence against 2 penalty 5 penalty section 5G(1) units units 8 An offence against 2 penalty 5 penalty section 5H(1) units units 9 An offence against 2 penalty 5 penalty section 5K(1) units units 10 An offence against 2 penalty 5 penalty section 5N(1) units units 11 An offence against 2 penalty 5 penalty section 5R(1) units units 561350B.I-23/6/2009 32 BILL LA INTRODUCTION 23/6/2009

 


 

Tobacco Amendment (Protection of Children) Bill 2009 Part 3--Miscellaneous Amendments s. 51 Column A Column B Infringement penalty Infringement Infringement (natural penalty (body Item offence person) corporate) 12 An offence against 3 penalty 30 penalty section 6(2AA) units units 13 An offence against 3 penalty 30 penalty section 6(2A) units units 14 An offence against 3 penalty 30 penalty section 6(2B) units units 15 An offence against 4 penalty 60 penalty section 12(1) units units 16 An offence against 2 penalty 12 penalty section 12(2) units units 17 An offence against 3 penalty 30 penalty section 12(3) units units 18 An offence against 3 penalty 30 penalty section 13(1) units units 19 An offence against 4 penalty Not section 13A(1) units applicable 20 An offence against 4 penalty 60 penalty section 13A(2) units units 21 An offence against 3 penalty 60 penalty section 14 units units 22 An offence against 2 penalty 5 penalty section 15C(1) units units 23 An offence against 2 penalty 5 penalty section 15C(3) units units 24 An offence against 1 penalty Not section 15F(1) unit applicable 25 An offence against 2 penalty Not section 15G(1) units applicable 26 An offence against 2 penalty 5 penalty section 15H(1) units units 27 An offence against 3 penalty 30 penalty section 15I(1) units units 561350B.I-23/6/2009 33 BILL LA INTRODUCTION 23/6/2009

 


 

Tobacco Amendment (Protection of Children) Bill 2009 Part 3--Miscellaneous Amendments s. 51 Column A Column B Infringement penalty Infringement Infringement (natural penalty (body Item offence person) corporate) 28 An offence against 3 penalty 30 penalty section 15J units units 29 An offence against 3 penalty 30 penalty section 15L(1) units units 30 An offence against 3 penalty 30 penalty section 15L(2) units units 31 An offence against 4 penalty 60 penalty section 15S(1) units units 32 An offence against 1 penalty 5 penalty section 15ZB unit units 33 An offence against 1 penalty Not section 36C(3) unit applicable ". __________________ 561350B.I-23/6/2009 34 BILL LA INTRODUCTION 23/6/2009

 


 

Tobacco Amendment (Protection of Children) Bill 2009 Part 4--Repeal s. 52 PART 4--REPEAL 52 Repeal of amending Act This Act is repealed on 1 January 2012. Note 5 The repeal of this Act does not affect the continuing operation of the amendments made by it (see section 15(1) of the Interpretation of Legislation Act 1984). 561350B.I-23/6/2009 35 BILL LA INTRODUCTION 23/6/2009

 


 

Tobacco Amendment (Protection of Children) Bill 2009 Endnotes ENDNOTES By Authority. Government Printer for the State of Victoria. 561350B.I-23/6/2009 36 BILL LA INTRODUCTION 23/6/2009

 


 

 


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